a blog about sexuality, gender, law and culture

30 posts from July 2008

July 22, 2008

Tomorrow (Wednesday the 23d) at 2 pm the Military Personnel Subcommittee of the House Armed Services Committee will hear testimony on whether Congress should repeal the law establishing the Don't Ask Don't Tell policy. The hearing will be broadcast live on C-Span 3 as well as webcast on the Committee home page. The bill before the subcommittee is HR 1246, the Military Readiness Act, which now has a respectable 143 co-sponsors. DADT is the vestigial remnant of the firestorm that dominated the first six months of Clinton's presidency, a political vortex fueled by a combination of the administration's political clumsiness, then-Senator Sam Nunn's ego, a gotcha-hungry media, and Pentagon brass horrified that this was the first issue thrown at them by (in their view) the draftdodger who was wrongly elected president. What a disaster.

As with most theatrical productions inside the beltway these days, this one is geared to laying the groundwork for when the Dems control the White House and beef up their numbers in Congress. (Of course I realize that an Obama presidency is not a sure thing, but barring a tragedy or an extremely ugly scandal, it is his to lose. And his victory is also - and this is key - now the expectation of the political/pundit class.) What all this means is that the DADT repeal will likely be one of the first LGBT issues that the next Congress tackles. Advocates hope that strong public support, triggered by tomorrow's hearing and its spin-offs, will pave the way for Congress to finally repeal this compromise from hell.

What does it mean to have a "feminist wedding"? Different couples may define this in many ways, just as different people define feminism in many ways. Most would agree, however, that a feminist wedding includes alternatives to some of the more patriarchal aspects of a traditional wedding. Here's how you can have a feminist wedding.

Step1

Keep the wedding relatively simple and have as little to do with the wedding industry as possible. This industry makes a fortune by promoting a Prince Charming fairy tale and by exploiting women into spend as much money as possible. What could be less feminist than that?

Step2Don't even bother picking up a bridal magazine, unless your purpose is to laugh at it.

Step3Brides, resist the pressure to be a "perfect bride." Who cares if you're overweight, or if your dress isn't perfect, or if the florist messes up? Women are taught to believe that the quality of the wedding is a reflection of their self worth. Whatever!

Step4Skip the tradition of the father walking the daughter down the aisle. This tradition dates back to the days when the bride was literally property that was being handed over from one man (the father) to the other (the groom). Both parents can walk both the bride and groom down the aisle (a tradition in Jewish weddings). Or the bride and groom can walk down the aisle holding hands, or each walk down separately. You can also skip the whole aisle concept.

Step5Try to get guests to refrain from standing when the bride walks down the aisle. A woman earns respect through her accomplishments, not by landing a man. If you have a wedding program, include a line such as "please do not rise for the bride."

Step6Consider alternatives to the terms "maid of honor" and "bridesmaid." Instead, have a "woman of honor," and call the men and women "attendants."

Step7Write vows that invoke feminist principles. Vow to be equal partners who mutually respect and nurture each other without infringing upon the other's identity.

Step8Consider alternatives to the woman taking the man's name, such as mutual hyphenation, or the bride and groom keeping their names. Let those in attendance know of your choice. You can print it on the wedding program, or have the officiant say something like, "Lisa and Jason are celebrating the creation of their family by creating a hyphenated last name. They henceforth will be known as Lisa and Jason Cooper-Green."

Step9Even if the bride does take the groom's last name, do not have the officiant introduce the couple as, "Mr. and Mrs. Jason Green." Even if you do take his name, sweetheart, you still have a first name of your very own.

Step10Do what you want. Part of feminism is about expressing your identity as you see fit (that's Third Wave feminism), so create a wedding that's uniquely yours. If you have your heart set on a more traditional option, like a poofy white dress or bride and groom cake figurines, go for it. You won't be thrown out of the feminist club.

July 21, 2008

Following are excerpts from a speech arguing that sexual violence is an international health crisis. Follow the link for the full speech. It is grim reading, but a compelling argument. HT to Mary Reed of the Association of Nutrition Services Agencies and Chai Feldblum.

... Early last week, as everyone knows, charges of genocide, crimes against humanity and war crimes were laid against President Omar Hassan al-Bashir of Sudan by the International Criminal Court. Imbedded in the charges were grotesque crimes of sexual violence. If the phrase “the killing fields” of Cambodia has entered the language, then “the raping fields” of Darfur cannot be far behind.

Later in the week the President of Indonesia was forced to express extreme regret for murder and rape committed by the Indonesian army when it was attempting to subdue East Timor.

And at the end of the week, the Uganda Law Reform Commission reported to parliament that of 6,000 people interviewed in a formal survey, 92% reported that some form of domestic violence was taking place in their communities. The report cites sexual violence, psychological torture, physical and bodily harm and marital rape. The highest levels of violence were recorded in Northern Uganda where a bitter civil war has raged for more than a decade.

It can safely be said that not a day goes by without some authoritative report from some country of hideous sexual violence directed at women. It has become a world-wide contagion. And it is a huge issue of public health: the health of the women, psychological, emotional and physical is torn asunder. That’s the objective.

There’s not a region of the world that’s exempt. It’s happening in Iraq; it’s happening in Afghanistan … and before anyone becomes too smug about it, it’s worth recalling the astonishing article in the LA Times, written by Jane Harman, chair of the House Homeland Security subcommittee on Intelligence. She wrote that women serving in the US military are more likely to be raped by a fellow soldier than killed by enemy fire in Iraq. And then, at a visit to the VA Healthcare Centre in Los Angeles, the doctors told her “that 41% of female veterans say they were victims of sexual assault while in the military, and 29% reported being raped during their military service”. She also employs figures from the Department of Defense showing a 73% increase in sexual assaults within the military, 2006 over 2004 (we’re talking of almost three thousand assaults). ...

Check out these podcasts from GLAD telling the back story behind a number of important cases, including Hurley, Bragdon v Abbot and (not yet posted) Goodridge. I think they would make terrific teaching materials.

In a corner of Istanbul today, the man who might be described as Turkey's gay poster boy will be buried – a victim, his friends believe, of the country's deepening friction between an increasingly liberal society and its entrenched conservative traditions.

Ahmet Yildiz, 26, a physics student who represented his country at an international gay gathering in San Francisco last year, was shot leaving a cafe near the Bosphorus strait this week. Fatally wounded, the student tried to flee the attackers in his car, but lost control, crashed at the side of the road and died shortly afterwards in hospital. His friends believe Mr Yildiz was the victim of the country's first gay honour killing.

"He fell victim to a war between old mentalities and growing civil liberties," says Sedef Cakmak, a friend and a member of the gay rights lobby group Lambda. "I feel helpless: we are trying to raise awareness of gay rights in this country, but the more visible we become, the more we open ourselves up to this sort of attack."

Turkey was all but closed to the world until 1980 but its desire for European Union membership has imposed strains on a society formerly kept on a tight leash. As the notion of rights for minorities such as women and gays has blossomed, the country's civil society becomes more vibrant by the day. But the changes have brought a backlash from traditionalist circles wedded to the old regime....

Against this backdrop, the issues of women's rights, sexuality and the place of religion in the public arena have been particularly contentious. Ahmet Yildiz's crime, his friends say, was to admit openly to his family that he was gay. [more at the link]

In BIG Surprise, D.C. Circuit Holds "Sleeping" and "Having Sex" Are Major Life Activities

But you shouldn't do them on the bench....

In two recent decisions, U.S. Court of Appeals Judge David Tatel has found on behalf of D.C. Circuit panels that "sleeping" and "having sex" are "major life activities" for purposes of federal disability discrimination law, in employment discrimination cases. Desmond v. Mukasey, 2008 Westlaw 2583022 (July 1, 2008) (sleeping) and Adams v. Rice, 2008 Westlaw 2777903 (July 18, 2008) ("engaging in sexual relations"). Now, this might strike anybody not versed in the arcane aspects of federal employment discrimination law to wonder what is going on. After all, it is highly unlikely that most jobs that would come to the attention of the courts in the context of an employment discrimination case would list "sleeping" or "having sex" as essential elements of the job. So why is it relevant to deciding an employment discrimination case for a court to inquire into the sleeping or sexual activities of the plaintiff?

When Congress began legislating on the topic of discrimination against people with what were then (1970s) called "handicaps," it decided that the law should not be concerned with minor or transient physical or mental impairments, but rather with significant impairments of a long-term or permanent nature. Partly this was out of concern not to flood the courts with litigation about cases that might be deemed trivial, and partly out of sensitivity about intruding unduly into the discretion of companies to manage their businesses and make their personnel decisions. In trying to describe the kinds of physical and mental impairments that were serious enough to qualify an individual for federal statutory protection against unjustified discrimination, Congress hit upon a somewhat peculiar formula: it stated that in order to be considered "handicapped" (the language was changed with the passage of the ADA to "person with disability"), a person would have to have a physical or mental impairment that substantially limited a major life activity of the individual. The statute does not define "major life activity" and subsequent regulations by federal agencies have proven a bit too vague to provide easy guidance in all cases. In addition, the Supreme Court has in recent years been resistant to relying on the legislative history of the statute in instances where it might yield easy answers.

Thus, disability discrimination cases have been known to get bogged down in furious pretrial litigation about whether the plaintiff has a "disability" within the meaning of the statute, and those arguments have in many cases focused on whether a "major life activity" was "substantially limited" by the particular physical or mental condition at issue..... [Follow link for the remainder of Art's analysis]

July 20, 2008

CHICAGO -- In a victory for antiabortion forces, doctors in South Dakota are now required to tell a woman seeking an abortion that the procedure "will terminate the life of a whole, separate, unique living human being."

The U.S. Court of Appeals for the 8th Circuit last week lifted a preliminary injunction that prevented the language from taking effect. A spokesman for Planned Parenthood, which runs the state's only abortion clinic, said doctors will begin reciting the script to patients as early as this week.

On another front, South Dakota voters will be asked in a Nov. 4 referendum to consider broad limits on abortion for the second time since 2006. The ballot measure includes exceptions for rape, incest and the woman's health that were not part of the 2006 wording rejected by voters.

Antiabortion forces in South Dakota have been trying for years to halt the procedure and to build a winnable challenge to Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide.

A law that took effect July 1 requires doctors to ask a woman seeking an abortion if she wants to see a sonogram of the fetus. About 700 abortions are performed in South Dakota each year.

The doctors' script that officially took effect Friday has been tied up in court since 2005, when Planned Parenthood challenged a law that instructed physicians what to tell abortion patients. Under the law, doctors must say that the woman has "an existing relationship" with the fetus that is protected by the U.S. Constitution and that "her existing constitutional rights with regards to that relationship will be terminated." Also, the doctor is required to say that "abortion increases the risk of suicide ideation and suicide."

The message must be delivered no earlier than two hours before the procedure. The woman must say in writing that she understands....

+++++++++

The measure on the SD ballot in November, Initiative 2-7, would ban all abortions except for those:

in which the pregnancy results from rape or
incest, provided the abortion occurs prior to the end of the 20th week
gestation and the physician reports the rape or incest to law enforcement,
identifying the woman and the perpetrator if possible; or

where the abortion “is necessary to avert the
death of the pregnant woman”; or

where the abortion “is necessary because there
is a serious risk of a substantial and irreversible impairment of the
functioning of a major bodily organ or system of the pregnant woman should the
pregnancy be continued.”

This initiative is the second attempt by anti-choice forces in the state, where voters in 2006 rejected a proposal to ban abortions with no health, rape or incest exceptions.The strategy behind the new proposal is laid out in a chilling memo from anti-choice strategists as the best way to overturn Roe and Casey. The key to their approach is grounding the initiative in a "legitimate exercise of the State's power to prohibit abortion in order to protect, not just the life of the unborn child, but the interests, rights and health of their pregnant mothers." (p. 8) In other words, to protect women from the "severe depression and loss of esteem [that] can follow" an abortion, as the Supreme Court declared in Gonzalez v. Carhart, 127 S. Ct at 1634.

This new "woman protective abortion amendment" strategy, to use Reva Siegel's phrase, is where the anti-choice movement is heading, and the SD vote in November is the tip of the spear. Reva has an article forthcoming in Duke Law Journal tracing the political history of the strategy, from pregnancy "counseling centers" to government reports to legislation.

If the SD initiative passes, we will see similar laws pop up around the country. And four years from now, give or take, we may see five Justices of the Supreme Court uphold it.

Almost simultaneously with the new Field poll showing
Californians rejecting a state constitutional amendment to bar same-sex
marriage, the Quinnipiac Polling Institute released a new national poll on
attitudes toward same-sex marriage. Not
surprisingly, the results were less supportive of equal marriage rights
overall, although with a few interesting specifics.

Quinnipiac asked a series of questions about abstract
propositions. The results tracked the spectrum of support that has become
expected:

36% say
they support s/s marriage

44% say
states should recognize s/s marriages from other states

49% would
oppose a law in their states banning s/s marriage

56% oppose
amending the US Constitution to ban s/s marriage

… in other words, a resounding majority for the status quo
(although far more than 49% of Americans live in states that have already
banned s/s marriage).

When given the choice of supporting marriage, civil
unions or no recognition, 33% support civil unions; 32% marriage, and 29% no
recognition. In other words, almost two-thirds of Americans support some
formal legal status that recognizes same-sex couples.

A different report from Pew Research Center,
http://pewresearch.org/pubs/868/gay-marriage,
maps the change over the last five years, from 30% support for marriage to 38%. In that poll, 51% favor making either marriage or civil unions open to s/s couples.

The most striking similarity between the Field and
Quinnipiac results is the mirror image that emerges from political party
comparisons. In Californa, 63% of
Democrats plan to vote to retain the right of s/s couples to marry, and 68% of
Republicans plan to vote against it. Nationally, 62% of Democrats oppose a law in their state to ban s/s
marriage, and 64% of Republicans support such a law.

So what does all of this mean? And why do I find it so interesting? Perhaps the fact that attitudes change slowly
and largely in mysterious ways makes any plausible measurement all the more
significant. Opinion polls have become the
metric of social change. They empiricize the change process, and, by so doing, also probably facilitate it. Of course, polls can seldom illuminate the deeper reasons why change is occurring. Progressives routinely opine (and I think many conservatives grudgingly agree) that anti-gay attitudes will simply die off, as older generations are replaced by younger people for whom gay, schmay is no big deal. But why, exactly, is sexual orientation so much less stigmatized for younger adults? Surely Will and Grace can't explain everything...

July 19, 2008

Last week, the highest court of Massachusetts ruled that an unmarried partner could not bring an action for loss of consortium, even if the couple married as soon as it was legally possible for them to do so. Charron v. Amaral, 451 Mass. 767, 2008 WL 2672967, involved a lesbian couple who obtained a marriage license on the first day that same-sex marriages were legal in Massachusetts, and married three days later. Less than a year earlier, Michelle Charron had been diagnosed with breast cancer; her partner Cynthia Kalish sued for loss of consortium beginning at the time of diagnosis. The court reaffirmed earlier cases which held that only a person who was a spouse at the time the claim accrued could sue for loss of consortium.

The decision breaks no new ground, and that is the problem. The court unanimously holds the line at marriage, clearly worried about opening the proverbial litigation floodgates to loss of consortium claims by partners who could litigate based on the specific facts of each of their cases, seeking to demonstrate the level of commitment and the emotional bond present in the relationship. That may be sensible, but marriage is not the only way to foreclose windfall damages for suddenly devoted couples tyring to play on the sympathies of a jury. One obvious and workable mechanism would be to limit standing to bring such claims to persons who either were married or who had entered into another binding legal relationship, such as registering as partners with an employer or becoming legal co-parents to a child. GLAD filed an amicus brief pointing out to the court that Massachusetts law did recognize non-marital relationships in a variety of contexts, but the court drew a line at marriage.

The case is interesting because the court once again reverts to a conservative rhetoric of marriage, as it did in many portions of Goodridge, the case which granted same-sex couples the right to marry. The opinion of the court reaffirms language from earlier decisions finding that Massachusetts "has a 'deep interest' in upholding the integrity of marriage." Chief Justice Marshall, who wrote Goodridge, concurred in Charron, noting that "the bright line between civil marriage and other forms of relationship ... has heretofore been carefully preserved by ... our prior decisions, includingGoodridge." (emphasis added)

It's no surprise that Nancy Polikoff, author of Beyond (Straight and Gay) Marriage, blasts the decision, arguing that there is no real reason to worry that roommates will qualify for damages if the cause of action is expanded. I'm less sanguine than Nancy about roommates eschewing opportunist litigation, but I agree that Charron is an opportunity missed.

... By '07 even the boys were Obama Girls, and their parents were borne along on the energy, feeling young and hip and a little damp in the drawers themselves. "America is back!" Obama told crowds he would announce to the world if they elected him. Hillary and the others didn't have a chance. They had welded themselves to prosaic needs and familiar lies. Obama recognized a different need, requiring a different lie, a pretty lie, not just "change" but "change you can believe in." Tell me again. Yes, darling, you really are beautiful... Like someone ground down by years in a bad relationship, America needed a seduction and, then, like the starlet on the crooner's arm, the reflected shine.

[During the Vietnam war, American culture was nonetheless "swinging."] It isn't swinging now. It's desperate and needy, outwardly brash but inwardly a mess and not sexy at all, like Tila Tequila, self-styled bisexual maverick, rejected on her own reality TV show by the contestant she chose for "a shot at love." In that long, hot summer of 1967 no one confused the whole culture with the white, tight, flailing power structure around LBJ; but today, with no major pole of countercultural revolt, it feels as if America itself is in the Uncool column with the tawdry crimes and embarrassing flubs of President Bush--"Airball!"

Enter Barack Obama, loosening up on the basketball court between campaign stops--"Swish."

If politically he now appears to be not substantively different from any other neoliberal, as a sex symbol he is the new man. New, most plainly, because in his mingled blood those born since 1980 or so can see their future lovers and children, if they don't already see themselves. For this generation, interracial sex is a normal experience, still complicated but nothing that 60 percent of them have not already entertained (polls use the word "dating"), nothing more risky than love. ... Suddenly, casually, it is hard to think of desegregation within the narrow limits set out by the schoolbooks, as a simple fight for a seat on a bus or in a public toilet rather than as a radical claim to express one's full humanity--through a kiss, a caress, a child, a life of one's own making, an unbroken line of free choices linking all those who have ever struggled for equality and sexual liberation ...

July 18, 2008

Press reports have been building all week about the Census
Bureau’s announcement that it will not count same-sex couples legally married
in California or Massachusetts (or in other countries) as “married.” The San Jose Mercury News broke the story, which was picked up by the Washington Post, and the AP story ran in the Times and who knows where else. Now People for the American Way has started a petition campaign calling on the Bureau to change its policy. It's fascinating to me what legs this story has -- the issue isn't new (see below), but it's newly visible because it's being driven as a spin-off of the California drama.

Officials
justify the decision as required by the Defense of Marriage Act (DoMA), which limits recognition of “marriage” to
different-sex couples for purposes of all federal laws and agency actions. See the Bureau’s analysis, originally posted
regarding the 2000 census: http://www.census.gov/population/www/cen2000/samesex.html

Today, Gary Gates, senior
policy fellow at the Williams Institute at UCLA Law School, has an op-ed in the L A Times laying out the arguments for
why the Bureau should not alter the correct response of "married" to "unmarried partner" whenever the couple has two partners of the same sex. Countless government programs and academic researchers rely on Census data, but where LGB couple households are concerned, ideology is trumping reality … as if same-sex marriages
will just go away if the Census refuses to count them.

The legal obstacles created by DoMA are real, but not insurmountable. Williams is spearheading an effort to persuade Census Bureau officials to take immediate steps, pending repeal of DoMA, that would greatly alleviate the harm of miscounting. For example, the Bureau easily could flag the data on same-sex couples who are legally married, so that researchers could retrieve the information from public (anonymous) data files. Additionally, the Census currently excludes all unmarried partners (straight and gay) from the definition of "family." Because DoMA addresses only the terms "marriage" and "spouse," there is no legal barrier to adopting new ways of analyzing family household data. Lastly, with almost one in four Americans living in a jurisdiction that has created a non-marital form of official family recognition, the Census could publish data about these unions/partnerships so that researchers could study their characteristics. There is much that the Census Bureau could do, even without a change in DoMA.

Repealing DoMA, though, is the proper response. It is a bad policy and a silly law, and its elimination should be high on the agenda for the next Congress and the Obama Administration.

A Field poll of likely voters released today shows that 51% of Californians intend to vote no on Proposition 8, a state constitutional amendment which would in essence reverse the California Supreme Court decision in In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (2008). The statewide survey completed this week shows a series of largely predictable splits among the electorate:

Democrats and Republicans are mirror images: 63% of Dems plan to vote no; 68% of Republicans plan to vote yes.

There is the typical gender split: 54% of women are no votes compared to 49% of men.

Latino voters support Prop 8 by a 5 to 4 margin; non-Hispanic whites, African-Americans and Asian-Americans oppose by the same margin. Important to note: more than twice as many Latinos are undecided as compared to persons in the other racial/ethnic categories.

Evangelical Christians favor Prop 8 by more than 2 to 1: 66% yes, 31% no. Non-evangelicals oppose, by 59% to 34%. Catholics are about evenly divided. "Other" and those with no religious affiliation overwhelmingly oppose Prop 8.

The anti-bullying bill, which would have listed gay students as potential harassment targets, is dead, said a state senator who worked on proposal.

The Senate had the bill on its list of issues to vote on today, but sent it back to committee.

Another controversial bill that appeared dead this week was twice given new life and passed, but Sen. Doug Berger, a Franklin County Democrat, said the bullying bill is really gone.

The bill was controversial because it listed "sexual orientation" and more than a dozen other characteristics as reasons school children might be bully targets. Groups interested in socially conservative issues such as the Christian Action League and the N.C. Family Policy Council did not want the term "sexual orientation" in state law, saying that gay-rights groups would use it to leverage other rights.

The bill would have required teachers, students and volunteers to report bullying and have local school boards establish anti-bullying policies.

+++++++

And in further justification of the gutless wonder label ... Pam's House Blend links to a poll showing overwhelming public support in NC for the bill: text is here.

I've been one of those people who have been meaning to blog for a long time. This week, my friend Minna finally nudged me into taking the plunge. She was having so much fun with her own terrific blog - http://kotplow.typepad.com/clinicians_with_not_enoug/ - that I couldn't resist.

So now, in the mid-summer heat when it seems sane for even mad dogs and law
professors to take a turn at the blogging bat, I'm
in.

Why? My goal is to provide commentary on sexuality and gender issues,
mostly but not exclusively focusing on law. Since I interpret "law"
broadly to include a variety of disciplinary and regulatory discourses, you can expect the contents to range pretty widely. I'm looking forward to publishing my own journal of justice seeking, flavored by humor. OK, maybe sarcasm too.